The evidentiary procedure before the International Court of Justice: The case study of three judgments

Abstract

Though evidentiary procedure before the International Court of Justice has been regulated by the Statute and Rules of the Court, most of evidentiary issues and rules have been clarified and established in the case law. That is why the focus of this article is on those cases where factual background played an important role: the Corfu Channel case, Military and Paramilitary Activities in and against Nicaragua and the Genocide case. The reasoning the Court used in these cases provides a comprehensive framework and standard-setting for evidence in international procedure. The author here argues that most of the rules have been diligently followed by the Court in subsequent cases, the most important of which equates the standard of evidence with the gravity of charges rather than pre-selecting the type of evidence depending on the characterization of the procedure (criminal or civil). The Court will use different standards of evidence for direct and indirect forms of State responsibility. Direct and fully conclusive evidence will be generally required for grave charges of direct responsibility of State which may result from commissions. Circumstantial evidence and inference will be used (if capable of passing the adequate standard of evidence) only for indirect forms of State responsibility which may result as a consequence of omissions rather than commission. The gravity of charge will also determine the burden of proof: while the principle of actor incumbit probatio always applies it may still be softened by simple resort to indirect evidence and inference applicable for indirect forms of State responsibility. If the Court needs to settle issues of criminal law before turning to State responsibility, the Court will find itself competent and capable of solving these issues. Though the Court will use its own terminology for standards in criminal law matters (such as fully conclusive evidence), the author argues that the standard of evidence thus used by the Court in no way differs from standard of criminal evidence (beyond reasonable doubt). Such issues, however, were easily resolved by the Court due to an uncommon feature of these cases, as the Court had at its disposal a variety of evidentiary materials and judgments of international criminal tribunals. These international criminal judgments were given the utmost probative value as the method of evidence. Other methods of evidence which will have the probative value of the highest rank would be the testimonies of persons directly involved in the events especially if their testimony runs against the interest of their State. This particular approach to evidence seems to be originally coined by the Court.